14 Feb 2009

A recent application under Right to Information Act (RTI) has attracted wide publicity and interest. A number of articles and view points have already been written on the same and in quest for putting the perspectives straight, without being prejudiced by our opinions, for the benefit of the readers we are giving an account of the backgrounds facts which led to the controversy and the present position and some interesting legal debacles which are involved in this hyped matter.

The germane facts to the controversy are that one public-spirited right-to-information activist (we call him so because he has already been involved in exposing the face of number of public authorities through the RTI route) filed an application with the Public Information Officer of the Supreme Court of India requesting certain information. The information sought was three-fold; (i) a copy of the resolution of 7th May 1997 passed by the judges of the Supreme Court wherein they voluntarily undertook to declare their assets on a time basis to the Chief Justice of India, (ii) information whether the judges of the Supreme Court have been filing such information in terms of the 1997 resolution and (iii) information whether the high court judges were filing similar information.

The Officer in-charge gave the copy of the resolution but denied giving any information on (ii) and (iii) and therefore the matter landed up with the Central Information Commission (CIC), the apex body under the RTI Act. It is pertinent to note here that the information which is sought was not the copies of the declarations but only the fact whether as such any declarations have been filed.

The CIC (feeling the importance of the matter) heard the matter with all its members (known as the ‘Full Bench’). Mr. Prashant Bhushan, a senior advocate of Supreme Court appeared from the side of the applicant whereas Mr. Amrendra Saran, Additional Solicitor General of India appeared to defend the officer.

The stand of the officer was sought to be defended by arguing that (i) the declarations are filed with the Chief Justice of India in a fiduciary capacity and therefore they are not amenable to the Court officers, and that (ii) the office of the Chief Justice of India is not within the purview of the RTI Act and therefore such information cannot be given. The CIC brushed aside all the objections and directed the information to be given holding that the officer was duty bound to give the information under the RTI Act. [click here to read the full text of the CIC decision]

Given its implications, the matter was immediately taken to the Delhi High Court wherein the order of the CIC directing disclosure of information was challenged and sought to be set aside. [Writ Petition No. 288 of 2009] Before the High Court a number of points were argued and at preliminary stage it took the view that it would be appropriate to stay the CIC’s decision till the outcome of the petition. [click here to read more on proceedings which took place before the High Court]

Legally speaking, there is some merit in the order of the CIC as the RTI Act itself provides that the Supreme Court of India is covered under the Act and the Chief Justice of India has been made the ‘Competent Authority’ for matters relating to the Supreme Court. In such a situation it is arguable that the office of the Chief Justice is covered within the mandate of the RTI Act. In any case the matter is before the High Court, so it would be prejudging the case. Let us instead await the decision of the High Court.

In any case, it is clear that this controversy is here to stay for a while. Either way the High Court decides, the matter is bound to reach in Supreme Court in appeal: (a) If the High Court approves the stand of the CIC, then the Supreme Court Registrar General would appeal to the Supreme Court, and (b) If the High Court reverses the stand taken by CIC, then the person seeking information would go in appeal. In such case not only the question of whether the information is to be disclosed would be a critical question but the more testing question would be the fate of the proceedings before the Supreme Court.

There is a well settled principle of governance, especially judicial governance, (which legal luminaries would be quick to cite as nemo judex in causa sua) that no one should be a judge in his own case. On this principle, the Supreme Court judges should refrain from deciding the matter as it involves their own interests. However there is an equally compelling burden on the Supreme Court to hear the matter in view of the fact that it has been entrusted by the Constitution the responsibility of being the ultimate repository of the Constitution and the legal system and to lay down the law as it stands.

That Supreme Court entertains the appeal and decides the matter, questions of propriety nonetheless, seems to be a more probable outcome as even in the past the Supreme Court has heard matters involving their interests such as the appointment and transfer of judges etc. In any case, it would be quiet a delight to hear the testing arguments of both the parties when the matter approaches the Supreme Court. So testing times ahead indeed, but an opportunity to learn for the law students as well.

The Motivation !!!

Rule 46 of the 'Standards of Professional Conduct and Etiquette' prescribed by the Bar Council of India requires that "Every advocate shall in the practice of the profession of law bear in mind that any one genuinely in need of a lawyer is entitled to legal assistance even though he cannot pay for it fully or adequately and that within the limits of an Advocate’s economic condition, free legal assistance to the indigent and oppressed is one of the highest obligations an advocate owes to society."

Sharing this "vision for a better-world" and serving to the Humanity, this blog is a small attempt by a group of like-minded lawyers to spread the word on "LAW" across the society.

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